Opinion
June, 1904.
Judgment and order reversed and new trial granted, costs to abide the event.
This action was brought to recover damages alleged to have been suffered by the plaintiff by reason of the defendants having cut down two trees which he claimed were growing on his land. The answer raised the general issue and averred that the defendants were highway commissioners; that the trees were in the public highway and obstructed the same, and that the defendants in cutting down the trees acted as public officers in the performance of their duties. It was not disputed on the trial that defendants were highway commissioners, or that the highway in question, Conklin avenue, was a public highway under their jurisdiction. At the close of the evidence the court directed a verdict in favor of the plaintiff, and submitted to the jury the sole question as to the amount of damages. The defendants asked leave to go to the jury on all the questions in the case, but this application was denied and the defendants excepted. The respondent in his brief conceded the rule to be that "Dedication by the landowner and acceptance by the public authorities * * * are sufficient to make a public highway," and this may, therefore, be considered as stating the rule involved in the decision of this case. He urges, however, that there is no evidence of such dedication and acceptance in the record before us. With that statement I can scarcely agree. The plaintiff has owned premises immediately north adjoining Conklin avenue for twenty years or more, and for a long period of time his land has been unfenced and open from the wall of his hotel southerly across the highway. The trees in question, to the east of his hotel some fifty feet or more, the defendants claim, were within the highway, and a map they have introduced in evidence drawn pursuant to a survey made in 1885, and to an order of the then highway commissioners, shows that they were wholly within the bounds of the highway. One Vandewater was called by defendants and testified that he had lived in the vicinity for fifty years and that he has known the premises in question all that time. In 1885 he was one of the highway commissioners of the town within which is situated the plaintiff's land. He says that he remembers a meeting being held at plaintiff's hotel on the thirteenth of August of that year, at which he was present with his associate commissioners. Two meetings were held, he says, about that time, and at one of them he saw the plaintiff, who stated that he was willing that the road be opened. The commissioners then showed him a survey they had made of the road, and the plaintiff was about and present during the making of that survey, and stated that he was willing it should be done. The original of the survey, the witness said, was entered of record in the town clerk's office, and the plaintiff, when spoken to about the road being narrow adjacent to his premises, and being advised that the commissioners were about to open it because it seemed best, coincided and testified his willingness to have it so opened, saying that he thought it was the best thing to do. The defendants produced and introduced in evidence a copy of the order made by the board of highway commissioners at that time, and the map to which we have referred, and which shows that the trees were in the line of the highway, and, as appears from the evidence, conforms to that order. This testimony of Vandewater as to what the plaintiff agreed to in 1885 I cannot believe to point to any other reasonable conclusion than that it was evidence tending to support a finding that the plaintiff then intended to dedicate, for the use of the town as a public highway, the premises which were included within the part of the highway as fixed by the survey, order and map; at least, the evidence was such, taken in connection with the documentary proof — the order and the map — as to support a verdict that the plaintiff intended to dedicate. There is scarcely room for dispute that abundant evidence of acceptance appears. The fact of the survey being made, the order and map being filed in the town clerk's office as the act of the board of highway commissioners were facts which would have warranted a conclusion of acceptance by the proper town officers. The jury would have been justified also in finding from the evidence of other witnesses that the space between the trees and the plaintiff's hotel and barn was open and actually used by the public as a highway. Because there was evidence of dedication and acceptance of the locus in quo, had the issue been submitted to the jury, they might have found such to be the fact and predicated thereon a general verdict for the defendants, and the refusal to submit the whole case to them was, therefore, error, which requires a reversal. All concurred, except Hirschberg, P.J., dissenting.